Gay Divorce in Texas?

Here is an interesting new issue in Texas family law – what happens when a Texas citizen gets married in another state and then, while living in Texas, wants to get divorced? Oh, and one other thing, it is a same-sex marriage.

While same-sex marriage is not recognized in Texas, it is legal in several other states. At some point we will get an answer to the question because a Dallas man filed for divorce from his husband last week. They were married in Massachusetts in 2006 and have resided in Dallas ever since.

The Texas Attorney General has indicated that he will intervene in the case and seek its dismissal based on the constitutional prohibition against gay marriage.

This leaves the same-sex couple who are splitting up in a strange predicament. They probably can’t get divorced in Texas since the state does not recognize them as married. They could get divorced in Massachusetts where their marriage is recognized, but first one of them would have to meet the statutory residency requirement (one year) before filing.

I have said for years when it comes to gay marriage and divorce, why should us heterosexuals have all the fun?

Scott Morgan is Board Certified in Family Law by the Texas Board of Legal Specialization. He has practiced family law since 1994 and is the founder of the Morgan Law Firm which is dedicated exclusively to representing divorce and family law clients in the Houston and Austin areas.

6 Responses to Gay Divorce in Texas?

The couple involved clearly pointed out in a statement to the news media that they were married in the state of MA while they were residents…so many of the articles make it sound like they snuck off to MA to get married over the weekend, far from true.

The couple is not asking Texas to recognize their marriage, only for legal protection now that they find themselves in a horrible situation, through circumstances largely beyond their control, of having to break apart their marriage.

Worse yet, the media circus claims that the two individuals are attempting to “test” the system in Texas – far from the truth – they are simply following the advisement of MA officials who told them they would have to file in their home state- or risk the loss of jobs, family, home and their entire support system for one of them to re-locate for a second time in order to gain a basic legal protection. In fact, they asked specifically that the case be sealed to protect their privacy and avoid the very public humiliation that has ensued.

Why is the same not true for any couple- for which this couple is no different – should all couples have to re-locate to the location where they were married for a year?

This is not about “gay marriage” – this about protection of assets under the due law given to all citizens – unless you just happen to be a resident of Texas where those with political aspirations want to grand stand at the expense of two individuals enduring a normal, painful process that more than 50% of couples experience each year.

I agree, this is a simple legal conflict. Two people need to have a “legal” divorce. It matters not who they are or where they were married, just that they need a legal divorce. People are getting all pissed off because they are bringing personal religious feelings into something that is non-religious in its basic form – state requirements of marriage.

You cannot have all authority and no responsibility nor can you have all responsibility and no authority. I believe that the few states that opened the front door to this issue must also take responsibility and provide for the means of divorce through THEIR OWN STATE CONSTITUTION. THEY should have to alter THEIR OWN residency requirements to incorporate what THEY have started. Period.

@ Marriage Records,
By that logic, heterosexual couples should also not be allowed to marry, “and then there wouldn’t be such a problem like” straight divorce, correct?
@Lisa,
That’s a very interesting idea. However, it really does undermine the American premise of basic human equality by creating additional legal hurdles for only a specific group of people. In other words, that’s just not fair.

I wondered how a state would handle a divorce from a same sex-marriage when that state did not recognize same-sex marriages. Most states recognize marriages which are legal in another state but not legal in their own state. For instance, many states do not recognize common-law marriages. However, if a couple was a resident of a state that recognized common law marriage, qualified as a married couple according to that state’s laws, then moved to a state which does not recognize common-law marriages, they could still get divorced in the new state. Most states recognize marriage as valid if it was valid in the original state, and the couple met the state’s requirements for a valid marriage.